Citation Nr: 18154276 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 10-03 286 DATE: November 29, 2018 REMANDED Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran had active service with the United States Marine Corps from November 1967 to May 1969. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a March 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The March 2006 rating decision granted service connection for PTSD, assigning a 50 percent disability rating effective June 7, 2004. The March 2006 rating decision deferred the matter of entitlement to a total disability rating based on individual unemployability (TDIU). The Veteran did not initiate an appeal as to the rating assigned for PTSD, and, in March 2006, the Veteran notified VA that he was satisfied with the rating assigned and wished to withdraw all appeals. Although the written statement may have been prepared by another person, the Veteran signed the prepared statement, effectuating the withdrawal. In November 2006, VA received the Veteran’s application for TDIU, in which he identified his service-connected PTSD as the disabling condition. While this could have been interpreted as an informal claim for an increased rating for PTSD, the matter of an increased disability rating for PTSD was not adjudicated until a July 2015 supplemental statement of the case, which continued the Veteran’s 50 percent rating. In a July 2015 notification letter, VA informed the Veteran that the matter of the rating assigned for PTSD was in appellate status. The letter did not clarify the period on appeal. In July 2016, the Board remanded the case to verify the Veteran’s mailing address and reschedule his requested Board hearing. At the time, the Board characterized the matter as an appeal of the initial disability rating. The Veteran is entitled to rely upon the VA’s apparent acceptance of an appeal as one for his initial rating assigned for PTSD. Thus, the matter is properly before the Board and has been characterized accordingly. Subsequent to the July 2016 Board remand, the RO verified the Veteran’s mailing address. See Report of General Information, dated December 2016; Notification Letter, December 2016. The Veteran was scheduled for a hearing, but failed to report for his scheduled hearing. As such, the Board finds his request for a hearing is withdrawn. See 38 C.F.R. § 20.704(d) (2018). In April 2017, the Board remanded the claim for further development. As discussed below, the Board finds that another remand is necessary to ensure substantial compliance with all the Board’s prior remand directives. Id. The Board notes that the Veteran filed a notice of disagreement (NOD) to a July 2015 rating decision denying service connection for a traumatic brain injury. A review of the record indicates that the RO has fully acknowledged the NOD and is currently in the process of adjudicating the appeal. Action by the Board now may serve to delay the RO’s action on the appeal. As such, no action will be taken by the Board now, and that issue will be the subject of a later Board decision, if ultimately necessary. Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. As noted above, this claim was most recently remanded by the Board in April 2017. At that time, the Agency of Original Jurisdiction was instructed to obtain outstanding mental health treatment records from West Oak Hospital and any periods of incarceration. The Veteran was to then be scheduled for VA examination to determine the severity of the Veteran’s PTSD, and specific questions provided by the Board were to be addressed. The Veteran was afforded a VA PTSD examination August 2017. The VA examiner stated that the Veteran was not diagnosed with any psychiatric disorder, including PTSD. Moreover, the VA examiner reported that the Veteran had never had the diagnosis of PTSD. The Board notes, however, that the Veteran is service-connected for PTSD and has a history of treatment for PTSD and other mental health diagnoses. See VA Treatment records, dated March 2017, November 2016; VA Examination, dated May 2015. Thus, the examiner relied upon an inaccurate factual premise in evaluating the Veteran and rendering the opinions requested in the prior remand directives. As such, the August 2017 examination report does not substantially comply with the prior remand directives. Accordingly, a remand for a new VA examination is warranted. In accordance with the prior remand directives, in April 2017, the RO provided the Veteran with a VA form 21-4142a and requested that he authorize VA to obtain records from West Oak Hospital and any mental health treatment records from his periods of incarceration. To date, the Veteran has not responded to that request. As the claim is being remanded for other development, the Veteran should be afforded another opportunity to either submit the above referenced records or authorize VA to obtain those records on his behalf. The Veteran is advised that the failure to provide the above requested information could negatively affect his claim. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (“The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.”). Finally, as the record indicates that the Veteran receives ongoing VA treatment, any updated VA medical records must be associated with the record. The matter is REMANDED for the following actions: 1. Appropriate efforts should be made to obtain and associate with this case file any outstanding VA medical records and outstanding private treatment records, with all necessary assistance from the Veteran. The Agency of Original Jurisdiction should make reasonable efforts to obtain records of any pertinent treatment made by state providers during periods of incarceration. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 2. Schedule the Veteran for an examination to determine the severity of his service-connected PTSD throughout the period on appeal (June 2004 and thereafter). The claims folder must be thoroughly reviewed by the examiner in connection with the examination, and such review must be reflected on the examination report. A complete history should be elicited directly from the Veteran. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. An explanation for each opinion shall be provided. The examiner should: (a.) Identify, by diagnosis, each psychiatric disability present since June 2004. (b.) Opine as to whether any psychiatric diagnoses not already service connected, to specifically include the Veteran’s documented alcohol and substance abuse, are a symptom of or are otherwise caused or aggravated by his service-connected PTSD. (c.) Identify each symptom of the Veteran’s PTSD (and any related psychiatric disorder), noting its frequency and severity. The examiner must specifically note the presence or absence of each symptoms listed in the rating schedule criteria. The examiner should specifically comment on the impact of the Veteran’s psychiatric symptoms on his occupational and social functioning and identify (based on the record) whether, when, and to what extent the symptoms and functional impairment have worsened during the period on appeal (if such is the case). (d.) To the extent possible, distinguish between the symptoms and functional impairment associated with the Veteran’s service-connected PTSD (and any related psychiatric disorder) from the symptoms and impairment solely due to any distinct and unrelated psychiatric disorder. A complete rationale should be provided for all opinions and conclusions expressed. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones v. Shinseki, 23 Vet. App. 382 (2010). J. A. Anderson Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. E. Trotter, Associate Counsel